Vignettes

A couple of weeks ago, I read Carl Schmitt’s Concept of the Political in a Danish translation, ‘Det politiskes begreb’. I had originally fallen upon Schmitt in high school, where I had written a paper called Brevis Tractatus de Bacchanalibus (A Brief Treaty on the Bacchanals) as my ‘larger written asignment’, a mini-thesis that high school students write in one of their major fields – in my case Latin. I had discussed, in Structuralist terms, how Roman historiography painted a picture an exotic, essentially inimical Other – the Bacchanals – which was entirely un-Roman, un-civilized and intolerable, and ultimately destroyed. Not exactly very refined work, or rather, not all that original, but it was my third year of high school. In any case, the state of exception came into my sights at this point – via Giorgio Agambens ‘homo sacer’ (cf. Wikipedia article on this). I haven’t since read any Agamben, except for (numerous) second hand references in various articles on violence and the state of exception. The last text I believe was about violence and bands of young males in Liberia. In any case, I was led from Roman history to Carl Schmitt, a truly fascinating author.

He’s rightly described as the Hobbes of the 20^th century. Controversial, combative, uncompromising and rather infamous for being the ‘Crown Jurist’ of the Third Reich. The questions of whether his theories are admissible or damned by association with the NSDAP is– to paraphrase Schmitt himself – “to me so uninteresting that I do not want to talk about that at all.“

I began my Schmitt studies with The Concept of the Political, which is a challenging little book. Regarding crime and punishment, I find the difference he points out between the hostis and inimicus fascinating and most definitely useful – Hostis is the public, external foe that is battled in war, while inimicus is the private, personal enemy*. One’s relationship to one’s foe need not be personally hostile – it can simply be be an acceptance of the act that a state of war, of belligerency, exists between to two parties or that there is nothing to hinder the rapid emergence of such a state.

I have spoken about internal and external threats before in this blog and elsewhere, and I think the hostis/inimicus-distinction addresses is excellently. While the criminal most definitely is odious and despicable, and despite the rhetorical ‘war on crime’, we cannot say that there is a state of war between the state and criminals. Except for the most extreme cases (which I will be discussing briefly), we do not destroy criminals and generally acknowledge their humanity and that they are part of society. The enormous devotion we put into rehabilitating criminals – reforming, reshaping them into a tolerable form- in order for us to keep them among us – bears witness to that. This thought interests me.

A crime is committed or an attack takes place; the criminal is neutralized punished or the attacker is destroyed; order is restored or safety is restored. On the one hand, the State is violated (since breaking the law is not only a private offense, but also an affront on its authority to establish laws in the first place) and naturally, it must react – it identifies the offender, neutralizes him, punishes him, takes step to ensure future compliance; on the other hand, it then forgives. Whether is forgets is separate matter. This outline is largely in line with the theory of restorative justice, to which partly I adhere. There is a transgression of the normal rule – that we, in our group, are on the same team – which precludes harm, deception and so on inside of it – but also, notably, a realization that there are wolves among the sheep; that there is some one inside the group who has behaved in the same way as an external foe.

The hostile behavior, the anti-social (which is a glorious term for a number of reasons) is acknowledged and must be dealt with somehow. Typically, classically and historically, we have responded with aggression – violent punishment or expulsion from the group as a lawless non-citizens. A homo sacer. Doing so is the non-idealistic response of a beleaguered society with an unstable boundary and internal workings, such as the Norse. It reclassifies the citizens – the social man who can be trusted (… and trusted to abide by the rules) – into a foe who cannot be trusted to be orderly and peaceable – based on hostile behavior. This is simple and logical. Hostile behavior marks the hostis – which warrants any and all defensive (re-)action.

In this light, imposing punishment can be seen as a a way of dealing with this blind and harsh conclusion in a way that will satisfy the logical need for the community to mark its boundaries and demonstrate its power and capability to respond to threats, but without drawing the boundary so sharply that it, in a pun, ends up lacerating us all, as summary executions or banishments would. The friend/foe-distinction is definitely primary here; the private enemy or ‘criminal’ is a derived concept. This I may even point out historically, as we gradually see more and more fine-grained (less black-and-white) definitions of criminals and threats – terrorists, traitors, anti-social people, criminals – while still retaining the original dichotomy of friend or foe. The government prosecutes and punishes domestic enemies on the same authority as it attacks or fends off foreign foes.

In this light, punishment is merciful. Perhaps it’s merely practical, but to the offender there is a certain mercy in not being exterminated or expelled from society. On the other hand, we solve the problem of the ‘friend’ – the citizen, compatriot, etc – acting hostilely (i.e. in the manner of a hostis) – by countering the initial reaction with its dialectal opposite – social obligations – which are antithetical to hostility. We speak of ‘debt to society’ –debt is, of course, a social obligation. The anti-social action – crime – can thus be translated into conferring greater social obligations and bringing the offender closer or deeper into society, while our simpler instincts – aggressive and territorial as always – urge us to expel and destroy. To use Hegelian terms, which I have already hinted at, we have a established a thesis – Expel/destroy; an antithesis contain/treat, and are at the time being awaiting the corrective synthesis. Future thinkers will have to resolve the issue.

I however pose some questions that I consider necessary in the light of this problem – our foes among friends. I have, e.g., fully legitimized treating immigrant criminals as hostiles, as enemies. This is problematic, but perhaps necessary, since it can lead to more interesting approaches to criminal justice as we apply it to foreigners. Punishment is, to continue my line of reasoning, akin to integration: The criminal alienates himself from society, is corrected and brought back in to the mainstream (though, on the other hand, we all know of the marginalization they experience, since – of course I would say – they are thrown further into the margins of the ‘friend’ category with every criminal act and risk their lives and safety by approaching – with every hostile act – being recategorized as hostes). The foreigner who acts against us is of course a hostis – which is why we deport them. We do not, however, deport ‘our own’.

But I might ask, why why we extend our mercy and punishing foreigners, if not for the goal of retaining them as citizens and integrating them? But why then do we at the same time deport them after they have completed their sentences?

I would suggest choosing either banishment or punishment. Either, our policy is to try to keep them here, among us, integrating them in society; or it is our policy to rid ourselves of hostile aliens by deporting them.

I am divided on the issue myself. We have these two options – one more idealistic, the other more cynical, and they appear to be equally reasonable. If someone poses a threat to society and is a foreign element, we have no obligation not to rid ourselves of that threat and burden – On the other hand, we could mercifully suffer them to stay, but after paying off their debt to society. I would somehow be impressed with the man who would choose years of imprisonment rather than face expulsion from his adopted home. It asks the question – Friend or foe?

* Schmitt adds, in a note, the following citation from Poponius:

Hostis is est cum quo publice belllum habemus … in quo ab inimico differt, qui est is, quocum habemus privata odia. Distingui etiam sic possunt, ut inimicus sit qui nos odit; hostis qui nos oppugnat.

 

Roughly translated:

The foe is the one with whom we – as a society – are at war … in this he differs from the enemy, who is the one we privately hate. They can be distinguished in this way, because the enemy is the one who hates us; [while] the foe the [is] the one who assails us